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Leaves of Absence for Victims of Domestic Violence
Employers may not discharge or in any manner discriminate or retaliate against an employee who is a victim of domestic violence, sexual assault, and/or stalking “for taking time off from work to obtain or attempt to obtain any relief,” including, but not limited to:
- A temporary restraining order,
- Restraining order,
- Or other injunctive relief, to help ensure the health, safety, or welfare of the victim or their child. California Labor Code section 230(c)
- (and for employees of employers with 25 or more employees) Seeking medical attention for injuries caused by crime or abuse.
- Obtaining "services from a domestic violence shelter, program, rape crisis center, or victim services organization or agency as a result the crime or abuse."
- Obtaining "psychological counseling or mental health services related to an experience of crime or abuse."
- Participating in safety planning and taking other actions “to increase safety from future crime or abuse, including temporary or permanent relocation." California Labor Code section 230.1.
In addition, an employer may not discharge, discriminate or retaliate against an employee because of the employee’s status as a victim of crime or abuse. In this situation, the employee must either have provided notice to the employer of the employee’s status as a victim of crime or abuse, or the employer has otherwise obtained actual knowledge of the employee’s status. California Labor Code section 230(e).
An employer must also provide reasonable accommodations for a victim of domestic violence who requests an accommodation to help ensue that the victim is safe while at work. Such safety measures may include “a transfer, reassignment, modified schedule, changed work telephone, changed work station, [or] installed lock . . .” However, the employer is not obligated to accommodate the employee if the accommodation would constitute “an undue hardship on the employer’s business operations.” California Labor Code section 230(f). An “Undue hardship” is an action requiring significant difficulty or expense. Whether an accommodation is an undue hardship is determined by considering factors such as the nature and cost of the accommodation needed. California Government Code section 12926(u).
An employee who is a victim of domestic violence who is discharged, discriminated or otherwise retaliated against for taking time off from work to obtain a temporary restraining order or other relief “shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.” California Labor Code section 230(g). The discharged, discriminated or otherwise retaliated against employee may “file a complaint with the Division of Labor Standards Enforcement of the Department of Industrial Relations.” California Labor Code section 230(h). The complaint must be filed “within one year after the occurrence of the violation.” California Labor Code section 98.7.
Violence in the home can be terribly tragic. The first defense against it is to be aware of when it is occurring. Domestic violence is defined by the California Family Code as abuse perpetrated against any of the following persons:
- "A spouse or former spouse"
- "A cohabitant or former cohabitant" (“’Cohabitant’ means a person who regularly resides in the household. ‘Former cohabitant’ means a person who formerly regularly resided in the household.” California Family Code section 6209)
- "A person with whom the respondent is having or has had a dating or engagement relationship"
- "A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act."
- "A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected." (e.g. the male parent’s name is on the child’s birth certificate)
- Any other person related by blood or marriage within the second degree. California Family Code section 6211.
To receive this leave, the employee "shall give the employer reasonable advance notice of the employee's intention to take time off" unless it is not possible to give advance notice. California Labor Code section 230.1(b). Often, employees needing such leave may not realize it until the need has become imminent, in which case failure to provide advance notice may not be a detriment to your case.
In addition, a person suffering from domestic violence often feels very traumatized and sometimes quite ashamed or embarrassed of his or her situation. Thus, the employer must keep the confidentiality of any employee who requests this form of leave. California Labor Code section 230.1(b)(3).
Usually in retaliation cases, the employer will cite a non-discriminatory reason such as poor attendance or dishonesty in the workplace for discharging or otherwise taking an action that affects the terms and conditions of the employee’s employment. To create a triable issue in a retaliation claim based on a leave of absence for a victim of domestic violence, the plaintiff must produce substantial evidence that employer's stated reason for discharging his or her employment was untrue or pretextual, or that the employer acted with a discriminatory animus (hostility or ill feeling), such that a reasonable juror could conclude that intentional discrimination based on grounds prohibited by statute was the real reason the employer terminated the employee. Comments from the employer that the victim is “pathetic” or “spineless” or “doesn’t have the courage to stand up for herself” followed soon thereafter by termination may be sufficient for a jury to conclude that intentional discrimination occurred. Even if the plaintiff never informed the employer of the domestic violence, the employer may have become aware of the plaintiff’s status as a victim of domestic violence because the employee showed up at work wearing excessive makeup to hide bruises, because the employee wore gloves or a scarf throughout the workday though the workplace was not cold, or the employee’s spouse showed up unannounced at the workplace, agitated.
Employers must provide information concerning California Labor Code sections 230 and 230.1 to a worker when a worker is first hired. The California Labor Commissioner’s Office offers a free, printable “Labor Commissioner’s Office Victims of Domestic Violence, Sexual Assault and Stalking Notice” for this purpose.
Other laws that might help you if you suffer domestic violence include:
- The California Family Rights Act (California Government Code sections 12945.1, 12945.2, and 19702.3)
- State Disability Insurance
- Unemployment Insurance
- The Fair Employment and Housing Act (FEHA) (California Government Code sections 12900 – 12996)
- Paid Sick Leave (California Labor Code section 245 et seq.)
If you have not been granted a leave due to domestic violence you have experienced, or if you have experienced negative treatment or termination from having taken a leave at your workplace due to domestic violence, or if your confidential information was mishandled at the workplace by your employer, contact the experienced attorneys at Kokozian Law Firm, APC. Ask about our free initial consultation.